[cc-licenses] CC 3 and Circumvention [Was Re: Version 3.0 - Public Discussion]

Peter Brink peter.brink at brinkdata.se
Tue Aug 15 07:45:24 EDT 2006


rob at robmyers.org skrev:
> Quoting Greg London <email at greglondon.com>:
> 
>> A CC license would authorize you to circumvent any DRM that
>> restricts the rights to that particular CC work.
> 
> But can it? The CC work's author is not the same person as the DRM system's
> author. Can the CC work's author give permission to circumvent a DRM system
> that they themselves are not the author of?

As far as the EC goes and based on p. 4 of art. 6 of the EC Directive 
2001/29/EC on the harmonisation of certain aspects of copyright and 
related rights in the information society (
http://www.wipo.int/clea/docs_new/en/eu/eu049en.html#JD_b6), one would 
think that DRM measures that have been put in place in "absence of 
voluntary measures taken by rightholders" are not allowed to remove fair 
use, fair dealing rights or any exceptions from the author's rights.

But in the last subparagraph of p. 4 one can read: "The provisions of 
the first and second subparagraphs shall not apply to works or other 
subject-matter made available to the public on agreed contractual terms 
in such a way that members of the public may access them from a place 
and at a time individually chosen by them."

This seems to mean that a licensee (such as site which offers 
downloadable works), that has not been explicitly forbidden from 
applying  DRM measures by the rightsholder, may impose DRM measures on 
his own accord, and if the public agrees (on contractual terms) to 
relinquish some or all of their fair use, fair dealing rights or any 
exceptions from the author's rights, then such DRM measures may not be 
circumvented.

If, however, the original rightsholder offers the work under the 
contractual term (such as those of a CC-license) that any DRM measures, 
that a licensee imposes, may be freely circumvented, then the end user 
will be free to circumvent any DRM protection.

Such a provision already exist, in the new Generic 3.0 license it is 
expressed as "[y]ou may not impose any technological measures on the 
Work that restrict the ability of a recipient of the Work from You to 
exercise their rights granted under the License."

/Peter Brink






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